The Problem with the GRA

Two days of watching the extraordinary case unfolding in the Supreme Court last week, over the issue of what the word ‘woman’ means in the Equality Act, has shed a light on some of the problems with the Gender Recognition Act, the legislation which caused all the trouble in the first place. The GRA enables persons of either sex to register in law as the opposite sex “for all purposes.” Michael Foran, in his explanation of the position of For Women Scotland, the appellants, makes the case for interpreting this phrase as restricted to the person’s legal relationship with the state: essentially births, marriages and deaths. Foran refers to this as a vertical relationship, as opposed to the relationship with equality law which would be horizontal, spreading sideways towards other people and their rights.

The question of whether the GRA modifies the meaning of sex in the EA is expertly dissected in the submission from Sex Matters, which points out the absurdity of having a protected group consisting of ‘females without a certificate, males with a certificate, but not females with a certificate’, an absurdity particularly prescient for lesbians wishing to have their own associations.

It mirrors the unworkable incomprehensibility of many of the arguments put forward by the KC for the Scottish Ministers, which relied on claiming that sex is not so important after all (when it applies to women needing single-sex spaces) but is life-changingly important for people wishing to change their sex legally by means of a Gender Recognition Certificate. This asymmetry in consideration of needs is a feature, not a bug, of the GRA.

The problem with the Gender Recognition Act is that it bakes in sexism, in and of itself, even before you begin to examine how it interacts with the Equality Act. The GRA itself is discriminatory against women. It would fail to pass an Equality Impact Assessment, one of the tools the EA provides for analysing the effect of policies on other protected groups. Its negative impacts are almost completely borne by women, and its benefits mostly enjoyed by men.

In an unequal society, where male/female is an axis of inequality, swapping sex is not a gender-neutral act. The GRA allows ‘people’ to change their gender (meaning their sex) in a piece of legislation which is, ironically, sex-blind – that is, it fails to take account of the disparity between the sexes and treats them as though they were of equal weight. Consequently, it ignores the disproportionate and asymmetrical effects of permitting a man to say he is a woman as opposed to permitting a woman to say she is a man. There is no equivalence between the rights granted here, in terms of the wider societal implications for other people.

The Equality Act has the aim of reducing inequality. The ‘sex’ part of it was incorporated from the Sex Discrimination Act 1975, an act primarily designed to reduce inequality for women as the sex suffering the most discrimination. Although technically protecting men too, it became common shorthand for ‘women’s rights’. The provisions in the EA therefore aim to redress the balance between the sexes. It addresses equal opportunities (through, for example permitting women-only shortlists, prizes etc) safety (through women-only changing rooms, overnight accommodation, prison estates) dignity and privacy (sex-segregated toilets, hospital wards) fairness (women’s sports) recovery from male violence, including sexual violence (women’s refuge, rape crisis etc) and biological differences (maternity rights etc). All these allowable ‘discriminations’ against men were never seen as an ‘added extra’ for women, but the very minimum needed to at least partly level the playing field. We’re not there yet: society is still unequal along the lines of sex and women still need all those provisions.

That being the case, men do not need comparable provisions, except for the basic human rights afforded to both sexes, such as privacy and dignity. To allow a man access to spaces and services reserved for women would give that man an extra advantage over other men, to the detriment of women’s rights. It would be an upside-down reading of the aims of the EA, exactly the opposite of what it sets out to achieve. There is no equivalent way that a woman wishing to be seen legally as a man can encroach upon the rights of men, other than in the matter of dignity and privacy. Even then, in spaces such as toilets and changing rooms, there is no equivalent risk for men in having a person of the opposite sex use a space where you might be in a state of undress or partial undress, whereas for women in that situation safety concerns would be paramount.

It is common practice (in the media for example) to obscure sex differences by using the word ‘trans’. The GRA encourages this – it creates a group of ‘people’ called 'trans' for whom the difference in sex is given a backseat. The very mention of sex is in fact discouraged by means of the concept of 'misgendering' which conflates sex with gender and makes it impossible to refer to sex without being accused of a hate crime. If 'trans' people are seen as a monolith, it makes it easier to justify males in women’s sport because you can deem it ‘trans exclusion’ to leave them out. Women can and do claim repeatedly that it is males we are arguing against (perfectly allowable in the EA, and quite the opposite of ‘hateful bigotry’) but as long as the BBC and others persist in seeing it as a sex-blind ‘trans issue’ our sex-based protections and rights continue to be under threat.

It is often said that because men are identifying downwards in status when they claim to be women, their acceptance of this loss of status proves how serious their identity issue must be. But a man is in fact identifying into ‘benefits’, which for women are a necessary correction in a sexist society, but for men are just nice little extras, unworked for and undeserved. There is also, consequently, a loophole opened for predators to exploit. A woman identifying as a man gains no such benefits but, on the contrary, loses all the protections and rights afforded to the female sex.

The question being debated at the Supreme Court last week was whether the GRA changes the meaning of the words ‘sex’ and ‘woman’ in the Equality Act. It is no coincidence the word ‘man’ was largely ignored; it is not contested because it just doesn’t matter as much: men don’t stand to lose everything over a definition. That's the reason that for two days the courtroom and overflow rooms were full of women supporting the For Women Scotland case.

The effect of the GRA over the years has served to illustrate perfectly the inequality between the sexes. If you weren’t sure before that we still live in an unequal society you can just observe what happens when legislation facilitates a change between the two sexes, and two opposing shifts of power and weight swing into action, all the benefits on one side, all the losses on the other. All the 'trans' people famous in sport, politics, publishing, journalism (and of course violent crime) are males who call themselves women; females who call themselves men are famous for getting pregnant. So much for queering the binary. A whole new oppression for women has been invented, to add to all the rest, and the equality gap between the sexes widens as a result.

Much is made of the small numbers involved when talking about ‘trans rights’ but it has become clear that the effect of these small numbers is disproportionate. Just one male footballer in a women’s team has not only taken a place from a female player but affects the rest of the team and every team subsequently played against in terms of fairness and safety. One male allowed into a women’s rape counselling group can retraumatise all the other members and ensure that other women who need the service self-exclude. One male attending a women-only swimming session makes the group mixed sex for everyone. No single-sex service can advertise itself as such if some males are legally female for the purpose of the Equality Act, because no service can guarantee that a man with a GRC will not attend at some point in the future. If sex still means biological sex, then all males can be legally excluded in a blanket ban, whatever their gender identity.

People who identify as ‘transgender’ are protected in the EA by the protected characteristic ‘gender reassignment’. The proposition from the Scottish Government is that they must also be protected under the protected characteristic ‘sex’ as their reassigned sex under the GRA. But this gives ‘trans’ people two protections and leaves women with nothing. Women fail to be protected under ‘sex’ as soon as someone of the opposite sex is added to the category. The human rights of women thus become a matter of luck or a postcode lottery: if you live in an area where there are relatively few trans-identifying people you are more likely to benefit from single-sex provision, but if you live in an area with a higher proportion of trans-identifying males, like Brighton, your services are less likely to stay single-sex. It is absurd to think the Equality Act was drafted with this intention in mind.

The only way the Gender Recognition Act could ever be fair to both sexes is if we lived in a society where the sexes were equal to start with, so that the swapping of one to the other would carry no asymmetric effects.

The Equality Act has a mechanism designed to root out discrimination and make sure all groups’ rights are considered, and it is often quoted in arguments over whether ‘trans people’ can be excluded from women’s spaces. To borrow this concept and, as a thought experiment, apply it to the GRA itself, it becomes clear that, without any corresponding strengthening and ringfencing of women’s EA rights, the GRA as it stands fails completely to meet the test of being ‘a proportionate means to achieve a legitimate aim.’